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Constitutional property law in Central Eastern European jurisdictions: A comparative analysis.

Swanepoel, Jan - Harm (2016-12)

Thesis (LLD)--Stellenbosch University, 2016

Thesis

ENGLISH ABSTRACT : This dissertation investigates three areas of constitutional property law doctrine,
namely the concept of property for constitutional purposes, the distinction between
deprivation and expropriation and the application of the proportionality principle as a
means of determining the legitimacy of interferences with property. More specifically,
it is determined how these three doctrinal areas are approached in the established
constitutional democracies of Germany, the United States of America, the principles
developed by the European Court of Human Rights, as well as relatively young
constitutional democracies in Central Eastern Europe and South Africa.
The respective German and US law approaches to the three doctrinal areas
differ in certain aspects. Interestingly, while their points of departure differ, they
reach similar conclusions in some instances. These two jurisdictions are presented
as two points on a continuum of approaches to the three doctrinal areas, with the
aim of determining whether the constitutional democracies in Central Eastern Europe
and in South Africa resemble an approach closer to German or US law. The
principles of the European Court of Human Rights regarding the three doctrinal
areas are also investigated because they represent an alternative framework that
influences the development of constitutional property law in the younger
constitutional democracies, particularly in Central Eastern Europe because of their
links to the European Union.
Generally speaking, in relation to the three doctrinal areas, the dissertation
concludes that on the continuum between German and US law, the constitutional
democracies in Central Eastern Europe and South Africa seem to follow an
approach that resembles German law rather than US law, although no explicit
reference is made in this regard.